Dreaming of Effective Assistance: The Awakening of Cronic's Call to Presume Prejudice from Representational Absence
56 Pages Posted: 21 Feb 2007 Last revised: 13 Dec 2016
Date Written: 2003
Most claims of ineffective assistance of counsel analyzed under Strickland v. Washington fail because defendants are unable to prove that they were prejudiced by defense counsel's deficient performance. Examining three federal appellate decisions involving lawyers who slept during trial, the article constructs a working test for presuming prejudice when a lawyer has been categorically non-functional. The test evolves from United States v. Cronic, which holds that prejudice to a defendant should be presumed when there has been a constructive denial of counsel. The article engages in a detailed investigation of several key terms from Cronic, including "constructive denial," "absence," and "meaningfully adversarial testing." Additionally, the article proposes several applications of the test to cases in which a defense lawyer remained silent throughout an entire trial or was affected by a severe mental disorder or drug impairment. In doing so, the article offers an original examination of Cronic, while defining a flexible, practical standard for evaluating claims of ineffectiveness based on representational absence.
Keywords: right to counsel, effective assistance, Strickland, Sixth Amendment, Cronic, sleeping lawyers
JEL Classification: K14
Suggested Citation: Suggested Citation